I recently assisted in obtaining a not-guilty verdict for a defendant who had actually engaged in sex crimes. He had exposed himself, had masturbated and had walked into a hotel lobby and had inappropriately touched the woman working at the front desk.

The defendant did every thing of which he was accused, so there was no uncertainty concerning his actions. However, the sex crimes with which he was charged required him to have intended his actions.

I reviewed this man’s medical records. He had previously been found to be delerious due to methamphetamine intoxication. He had laid down on Highway 101, one of the busiest highways in the world. He was found and taken to the county hospital for evaluation. The emergency room doctor determined that he had been delerious. He had been, and still was, a chronic methamphetamine abuser.

In the present case, the defendant was known to have been intoxicated with methamphetamine. He had no prior history of any kind of sexual fetish or perversion. However, the district attorney wanted to charge him with a sex crime and cause him to register as a sex offender. (Sex offender registration is a problem for individuals who are mentally ill. They forget to register each year or when they move, and that brings them additional criminal charges.)

I argued that this man was deranged and delerious, rather than a sex offender. He could have engaged in all sorts of inappropriate behavior because he was in a compromised mental state. He did not form the intent to engage in a specific sex crime. Instead, in his state of derangement, he simply did whatever he felt like at that moment.

Had he committed a sex crime? Absolutely. But had he formed the intent to commit a particular sex crime? No, he simply did what he felt like at the moment. This was in a similar fashion to his lying down in the middle of Highway 101. He had no affinity for lying down on a busy freeway. It just occurred to him at that moment, and his deranged mind did not thing to stop it. In a similar manner, his deranged mind figured it was a fine idea to begin masturbating in public and touching a woman who he happened onto.

By explaining to the jury the nature of delirium, I was able to convince them that this man was not a sex offender. He was simply deranged due to extreme drug intoxication. The jury agreed.

I have now worked on my third court ordered criminal evaluation in which I could not decide whether the defendant was mentally ill, simply dishonest or wrongly accused. A variety of psychological conditions could cause a criminal defendant to incorrectly believe that he or she had not committed the crime at issue. The defendant may have been in a dissociative state, psychotic or deranged or delirious due to drug intoxication. In such cases, the defendant would honestly testify that he or she was innocent because the defendant has no working memory of the events at issue.

Alternatively, the criminal defendant might well know that he or she is responsible for the crime, but is attempting to dishonestly deny having committed the crime.

Finally, there is a third possibility: that the defendant is innocent and his or her denial is simply truthful.

The forensic evaluator often does not know whether the person being evaluated is actually guilty. People are, sometimes, falsely accused. Ironically, one would not have a legal basis to decide if the defendant is guilty until AFTER the trial and the verdict. But forensic evaluators generally do their work on competency to stand trial and insanity defense BEFORE the facts have been established by the court.

My solution has been to offer all three alternatives in my reports:

1. The defendant may have no memory of the crime due to mental illness.

2. The defendant is innocent of the crime, and that is why there is no memory of it.

3. The defendant is guilty and is simply lying about his or her culpability, as criminals tent to do.

I recently testified on behalf of the respondent in a Board of Behavioral Science (BBS) case. The BBS regulates California Licensed Marriage and Family Therapists and Licensed Clinical Social workers.

At the administrative hearing, I discovered something shocking about the way the BBS uses their retained experts. These experts are licensed professionals who are asked to review consumer complaints along with all the investigative materials, including the written response and records of the clinician who has been accused of malpractice. Often, the facts are disputed. The complaining consumer says one thing occurred, while the responding clinician asserts an entirely contradictory set of facts. The dispute over the facts surrounding the consumer complaint will ultimately be resolved by the administrative law judge (ALJ) hearing the case.

My shocking discovery was that the BBS asks its experts only to offer a written opinion based on the information as stated in the consumer complaint. In other words, the expert is asked to write an opinion as if the consumer’s version of the facts is the only correct version. Even though the BBS’s expert reviews the clinicians response, the clinician’s records, and all the investigative materials, none of this is factored in to the expert’s opinion.

Here’s an example–oversimplified for the purpose of illustration. The consumer complained that the psychotherapist spent lengthy periods of time during each session talking about herself, in ways that had no apparent relevance to the clinical task at hand, thereby burdening the client with too much information about the clinician as well as wasting the client’s time and money. The psychotherapist absolutely denied this accusation and backed up her denial with detailed case notes that could only have been written had the psychotherapist been listening carefully to the client–rather than talking about herself–during the session.

The two versions of the facts were miles apart. Both could not be true. Obviously, one of the parties was not providing an accurate account of the facts. Assuming it is possible that either side of the story could be the correct one, why does the BBS only ask it’s experts to provide an opinion based on the consumer’s set of facts?

One possible explanation is that the BBS, upon receiving a complaint, would wish to determine whether the complaint is worthy of an investigation. Under that circumstance, it would appear perfectly reasonable to say to the Board’s expert, “We want to know whether to take this to an investigation. Assuming the consumer is telling the truth, has the standard of care been violated?” At the early stage of a complaint, it makes perfect sense for the BBS to seek guidance as to whether the complaint is worth investigating. Thus, if the consumer’s own version does not describe a breach of the standard of care, then no investigation would be necessary.

However, in the case in which I testified, the BBS only called in the expert after the investigation had been completed, after the responding clinician had provided her version of the facts, and after the clinician’s case notes had become part of the investigatory file.

It would seem that, at this point, the BBS would want an objective opinion by their expert. Since the expert does not know which version of the facts is the correct one, why wouldn’t the BBS ask the expert for three opinions in order the achieve objectivity: 1. an opinion predicated on the consumer’s version of the facts, 2. an opinion predicated on the clinician’s version of the facts, and 3. an opinion as to any information in the file that leads to professional conclusions regarding which party, consumer or clinician, is providing an accurate account of the facts.

Why would the BBS prefer a one-side, biased opinion from their expert prior to taking a case to an administrative hearing? The reasoning is unclear, although such a practice by the BBS only reinforces the notion that it’s enforcement policies are so biased in favor of the consumer that they do not even wish to consider the clinician’s side of the story. Certainly, this manner of employing testifying experts does nothing to increase the clinician’s confidence in the objectivity of their licensing board.

During the mid-1980s, I treated a patient in her first trimester of pregnancy who was suffering from severe morning sickness. At the time, I was working at the Kaiser Permanente Medical Center in Santa Clara, California. Although I saw no reason to get involved in the medical side of my patient’s treatment, I happened to mention her illness to a pediatrician friend of mine. He said something along the lines of, “There had been a medicine that helped tremendously with morning sickness, and it was perfectly safe–Bendectin. In fact, in large, controlled studies, pregnant women taking Bendectin actually had a non-statistically significant lower number of birth defects than women taking no medications. Bendectin was taken off the market because the manufacturer had faced numerous groundless lawsuits over birth defects.” The pediatrician’s statement led to my first introduction to “junk science” and what would later become known as the Daubert standard.

Jason Daubert and Eric Schuller had been born with serious birth defects. Their parents sued Merrill Dow, the manufacturer of Bendectin, which Jason’s and Eric’s mothers had used during pregnancy. In the lawsuit known as Daubert v. Merrill Dow, the plaintiffs produced experts who had found ways, especially in animal studies (that had been carried out specifically for this lawsuit), to demonstrate a link between Bendectin and birth defects. This research, which later was branded junk science, had never been published in peer reviewed journals, nor did it use methods which were scientifically acceptable. The case ultimately went all the way to the United States Supreme Court. Neither the trial court, nor any appeals court, considered Daubert’s expert testimony acceptable. Nevertheless, facing numerous lawsuits and a rekindling of the emotions of the Thalidomide horror of the 1960s, Merrill Dow voluntarily ceased production and sales of Bendectin in 1983. (Bendectin, as of today, is back on the market and is rated Pregnancy Category A–Research has found it to be safe during all trimesters of pregnancy.)

As a result of this case, and several similar cases, the courts have determined that expert scientific or technical testimony must meet certain standards, now known as the Daubert standards and codified in the Federal Rules of Evidence Rule 702. Rule 702 states:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.

As of July 1, 2013, the State of Florida has adopted the so-called Daubert Standard for expert testimony, supplanting the older Frye Standard. The Frye Standard dated from a 1923 case regarding the use of the polygraph. That standard held that scientific evidence had to be “generally accepted” to be admissible in court. Thus, if scientific testimony were to involve novel methods, such methods would be unlikely to meet the Frye standard. Novel methods could not possibly be shown to be “generally accepted” in the scientific community–even though such methods may be perfectly valid.

Frye focuses on the evidence itself, while Daubert focuses on the expert testimony that introduces that evidence. In practice, the two standards are difficult to distinguish, although one key issue involves timing. Under Frye, the expert testimony is likely to be heard by the jury and then perhaps refuted and considered inadmissible. Under Daubert, the judge had an obligation to exclude expert testimony that fails to meet the standards set out in Rule 702. In practice, the jury, who might hear inadmissible testimony under Frye, might never hear the questionable testimony under Daubert. Daubert gives the judge an obligation to expose the jury only to scientific evidence that meets the Rule 702 standards.

One might ask why does this matter to the Florida Legislature? Frye and Daubert are so similar, why would the State of Florida go through the trouble of passing the new law? Is the Florida legislature that concerned about the scientific method, validity and reliability? Is the Florida legislature composed of philosophers of science, research methodologists and journal reviewers?

Obviously not! I would contend that the Florida legislature does not care one iota about scientific method. However, they do care about “tort reform,” which is a code term for preventing consumers from suing corporations. Using the guideline of “follow the money,” one can ask who benefits financially from Daubert? Defendant corporations in product liability lawsuits are the expected beneficiaries, along with physicians and other medical entities. Daubert adds a hurdle that the plaintiff must surmount to bring a case. Plaintiffs’ experts not only must use scientific methods appropriately, but plaintiffs also bear the burden of proving to the judge that the experts have done so before the expert testimony is admitted.

As psychologists, we may not necessarily feel a close kinship with corporations that might be sued, be we do support the scientific method. Thus, our beliefs and the preferences of potential-defendant corporations happen to converge in this particular instance. We understand, for example, that a cluster of autism cases near a certain farm may or may not be the result of chemicals used at that farm. Psychologists understand that anything and everything may be associated with anything else by pure chance. Psychologists are socialized to believe in the scientific method and to understand that spurious findings frequently occur. You might say we have a moral obligation to assist juries in avoiding Type I and Type II errors in hypothesis testing. Daubert is consistent with our training and beliefs regarding scientific research.

Despite Daubert, clinical testimony may be admissible if the expert witness uses recognized methods, accepted by his or her field of expertise, in arriving at a conclusion. Many clinical conclusions are not data-based. In fact, one often hears testimony in court regarding the correct DSM diagnosis, with opposing experts disagreeing. The basis for such expert testimony is not scientific research, but merely what each expert believes the DSM says, along with that expert’s rationale for possibly deviating from the DSM. Disputes arise when an expert believes that the opposing expert is using the DSM inappropriately. Daubert hardly applies in such cases, as the DSM itself is not necessarily predicated on research that meets Daubert standards. Ironically, the “general acceptance” doctrine from Frye is more likely to govern clinical testimony, asking the question of whether the clinician has used the generally accepted methods of his or her field appropriately. In practice, the impact of Daubert on testifying clinicians has not been terribly burdensome. Whenever possible, in a written report, the clinician must cite a published authority for a given conclusion, with peer-reviewed authorities being preferred.

In sum, because psychologists subscribe to the scientific method–and decry junk science–we ought to support Daubert. To appreciate the virtues of Daubert, one only needs to reflect upon the generations of expectant mothers who needlessly suffered from morning sickness–including morning sickness severe enough to threaten the mother’s health and the pregnancy–because of the junk science that Daubert would have decisively rendered inadmissible.

Twenty or so years have passed since therapist-patient sex came squarely to the attention of the psychotherapy professions. In 1986, Kenneth Pope and Jacqueline Bouhoutsos published their book, “Sexual Intimacy Between Therapists and Patients” (Praeger). The publication of this book marked the end of an era—an era during which famous and respected psychotherapists married their patients, during which a surprisingly large number of psychotherapists became sexually involved with their patients, and an era during which this could be done without adverse repercussions to the therapists’ careers. For the past twenty years, every psychotherapy profession—psychologists, clinical social workers, marriage and family therapists, and psychiatrists—has decried and denounced this behavior, a behavior that is a crime in some states and leads to nearly automatic revocation of one’s professional license. For twenty years, psychotherapists have been exposed and re-exposed to redundant educational messages, at mandatory continuing education programs, telling them that sex with a patient is indefensible, inexcusable and is professional suicide.

For most of this twenty year period, I have testified or consulted as an expert witness on the standard of care in therapist-patient sex and other ethics matters that have involved psychologists, clinical social workers, marriage and family therapists and psychiatrists. I have seen remarkably egregious violations—not only of professional ethics but of ordinary human decency. I have seen a male therapist, while treating a couple, initiate a sexual relationship with the wife in the couple he is treating—despite the fact that the couple had come to the therapist hoping to save their marriage. I have seen a similar case in which the male therapist began a clandestine sexual relationship with the wife of the couple but actually continued simultaneously to treat the dyad—while secreting advising the wife to get a divorce. I have seen a psychiatrist exchange sex for drugs in the case of a substance-abusing patient, and I have seen a psychologist form an overly close relationship and borrow an inordinately large sum from a wealthy patient—only to claim later that it had been a gift. Also during this period, I have seen changes in the types of claims that are filed and in the circumstances in which therapists and patients become sexually involved with each other.

Despite the current ethics and enforcement climate—a climate that can best be described as zero tolerance for sex with patients—cases of therapist patient sex still occur. But while the cases continue to arise, they are different in certain regards from the earlier cases that came to light in the 1970’s and 1980’s. What follows is a description of some differences I have observed in my own consulting practice between therapist-patient sex as it occurred in the earlier, more naive era (let’s say, before 1980) and the current era (let’s say after 1995). One caveat is that numerous types of sampling error and bias are built into any such first-person account. I hope to provide illustrative examples that might lead to further discussion, and I acknowledge this is by no means a scientific survey.

1. In the earlier era, the therapist could convince himself—the male pronoun is used intentionally because most of the offenders were men—that the sexual behavior might be a helpful part of treatment. I believe that some, if not most of the offenders, who pitched this line to their female patients, actually believed it themselves. They told their patients that the patients needed to open up to intimacy, needed to overcome their fears regarding their sexuality, needed to break out of their shells, needed to learn body-acceptance, trust and so on.

While these arguments in support of sex with the therapist may have been cynical manipulations created by the therapist merely to seduce the patient, they also may have been sincerely stated—however false such arguments may be viewed by the rest of the professional community. Because in the former era there had been so little discussion of therapist-patient sex, the therapist could convince himself, as he convinces his patient, that this particular intervention had not been studied, could result in benefits to the patient, and had been rejected out of hand due to an anti-sexual, puritanical bias. Note that many of the known cases of therapist-patient sex occurred during the so-called “sexual revolution,” a time in our society when sexual experimentation of all kinds was seen as more acceptable. Indeed, during the 1970’s, Masters and Johnson and other sex therapists incorporated “sex surrogates” into their treatment. Perhaps, at the time, it was seen as only a short leap for the therapist himself to offer to serve as a male sex surrogate as a way to directly resolve the patient’s sexual issues. The therapist may have told himself that he was forward-thinking, if not cutting edge, and that lowering the barriers to sexual expression would benefit both therapist and patient. Like much else that went on in the name of the sexual revolution, today these ideas seem dated, wrongheaded and destructive.

Today’s cases are different. They occur in a climate in which every therapist has attended compulsory continuing education workshops and has been taught that absolutely no benefit, and likely harm, befalls patients after sex with their therapists. One difference, then, between previous cases and current cases, is a change in the likelihood that the therapist stumbled into this misbehavior with a belief that it might prove helpful to the patient. Today, no therapist can reasonably entertain that belief, as it has been so forcefully rejected by his or her peers and that rejection has been so well documented and thoroughly promulgated. Today’s offenders are different: They know full well there is no excuse or justification for what they are doing, they know their careers will be over if they get caught, yet they proceed anyway. Certainly, today’s offenders make a clear choice that their predecessors may not have knowingly made.

2. In the current era, the patient, like the therapist, is probably aware that sexual behavior in the context of psychotherapy is considered unacceptable. Patients are more sophisticated today. They have likely read newspaper or magazine articles about therapist-patient sex or heard discussions on television talk shows, and are aware of the low regard with which the psychotherapy professions greet this behavior. Because no scientific methods of survey research can possibly determine how many unreported cases of therapist-patient sex exist, the following is my own unsubstantiated speculation. Therapist-patient sex, when it occurs, is more likely to be reported today than in the earlier era because patients are more likely to know that it is a licensing violation. Nowadays, I suspect there are far fewer victims of this practice who, believing themselves to have been harmed by the sexual relationship, elect to go off and suffer in silence without filing a licensing complaint. For one thing, in California, any subsequent therapist who treats a victim and learns of a prior instance of therapist-patient sex is required by law to provide a pamphlet that describes courses of legal and professional action that are open to the victim.

In an unusual case about which I testified at a California Board of Psychology hearing, the female patient intended, for whatever psychological reason, to have a sexual relationship with her male psychologist. She was knowledgeable about the laws and actually went to an attorney and attempted to draw up papers that would make it impossible for her later to sue or file a licensing complaint. Her purpose in creating this document was to reassure her intended sex partner, her therapist, that he could proceed without fear of subsequent repercussions. She was unable to find an attorney who would draw up such papers and was apparently legally unable to waive those rights. Ultimately, the two did become sexually involved, and she did later file a licensing board complaint.

One potential consequence of a more knowledgeable population of consumers is the possibility of false complaints being filed. Unfortunately, with more patients being aware of the massive harm that can be done by a compliant—even an unsubstantiated complaint must be reported to professional staff associations and malpractice insurers—the likelihood would seem to increase for false complaints. Why would someone file a false complaint? A variety of factors could serve as motivation: hope of financial gain, acting-out of the patient’s pathological anger or of other aspects of a personality disorder, or freeing the patient from unwanted, or court mandated, treatment. I cannot say for certain how many cases of false complaints I have consulted on. After all, the jury’s verdict for the defense does not necessarily resolve such questions, as juries are fallible.

In one remarkable San Francisco case, the female patient suddenly initiated kissing the male therapist during a therapy session. The male therapist briefly responded, and they mutually kissed. The therapist quickly ended the session and, the next day, wrote a letter of apology to the patient. The therapist, a psychiatrist, stated that he had erred and that he and the patient should resolve this therapeutic error in subsequent sessions. The patient used the letter to substantiate that the kissing occurred, filed a lawsuit the day after receiving the letter, and was ultimately awarded a large sum of money by the jury. Was the entire scenario initiated by the patient as a contrived way to reap a financial reward? One can never know, but that certainly is one way of explaining the known facts.

This is the second part of a two-part series on changes over the years in litigation concerning therapist-patient sex.

3. One of the most significant changes over the years has been the advent of malpractice attorneys becoming knowledgeable about non-sexual boundary violations. Indeed, a specialty of lawyers has emerged—lawyers who sue psychotherapists—and these attorneys tend to know more about the ethics codes and practice guidelines of the American Psychological Association and other relevant professional organizations than many, if not most, of the professionals belonging to these associations. These attorneys file suits over non-sexual boundary violations—non-sexual touching, excessive self-disclosure, sessions outside the office, and non-sexual multiple relationships. A lawsuit against a psychotherapist for a non-sexual boundary violation was unheard of twenty years ago.

One very significant causal factor in the rise of lawsuits over non-sexual boundary violations was the termination or limitation of professional liability coverage for sex claims. One of the reasons attorneys took on the earlier cases of therapist-patient sex was the profit motive. Therapist-patient sex cases would reap million dollar or even multi-million dollar awards for plaintiffs. Large attorney fees came to an end when the malpractice insurers, who typically wrote policies with million dollar or higher coverage limits, recognized that therapist-patient sex was not a reasonable risk of psychotherapy, was not part of psychotherapy, and, consequently, did not need to be covered as part of the malpractice policy. Most malpractice policies today have a coverage limit of $25,000 for damages resulting from therapist-patient sex.

With the new coverage limits in place, the lawsuits for therapist-patient sex did not stop. Instead, attorneys adapted to the language of the new malpractice policies. Because numerous ethics experts have opined that non-sexual boundary violations precede therapist-patient sex, and because these non-sexual boundary violations are seen by many as harmful in and of themselves, a new kind of lawsuit arose: Therapists who had been sexually involved with patients began to be sued for all the non-sexual boundary violations that had preceded the sexual involvement. These boundary violations included sessions that focused on the therapist’s problems rather than the patient’s (excessive self-disclosure), meetings that were social and of no therapeutic benefit, exchanging gifts of substantial value as the relationship devolved from therapeutic to social, and a host of other activities that were incompatible with meaningful psychotherapy. The case was made that these non-sexual boundary violations had caused great harm to the patient—at minimum, depriving the patient of the needed treatment. The result of this new strategy was that cases of therapist-patient sex came to trial with hardly any mention of the sexual aspect of the relationship. Instead, they were tried based on the non-sexual boundary violations—the violations that werecovered by the malpractice policy.

Not only did this provide attorneys with a new strategy to sue for sexual violations and recover damages, it opened the door for these same attorneys to become knowledgeable about non-sexual forms of malpractice and negligence. This, in turn, gave rise to a new set of lawsuits that focused on claims of harmful non-sexual boundary violations or non-sexual multiple relationships. These behaviors had always been unethical when they were harmful or exploitative, but they had not previously been the focus of lawsuits because attorneys and patients had been unaware that they could be.

4. A conservative, risk management backlash against unethical psychotherapists has developed. Because of the increased number of lawsuits against psychotherapists over the past twenty years, malpractice insurance companies have led the charge to bring continuing education on ethics and risk-management to all psychotherapists. Numerous such courses are offered, some resulting in a discount on the therapist’s malpractice policy and some required for state license renewal. This represents a substantial change from the approach to ethics in the earlier era. Many psychotherapists of the Baby Boom generation, who trained in the nineteen sixties and seventies, had never even been exposed to a course on ethics, let alone risk management, as part of their professional training. The insurance companies support today’s continuing education courses, or even sponsor them themselves, in the hope that those who complete such courses will engage fewer of the behaviors that resulted in lawsuits and insurance payouts.

Risk management training is somewhat different from ethics education. Ethics, briefly, is about doing what is right. Risk management is about avoiding doing that which is risky—meaning that which is likely to provoke a lawsuit. Risky behavior by a psychotherapist is not necessarily unethical. Indeed, under certain circumstances, risky behavior may be the most ethical course of action. (See the recent book by Ken Pope and Melba Vasquez, “Ethics in Psychotherapy and Counseling: A Practical Guide,” Jossey-Bass, 2007, for a more complete discussion of the interplay between ethics and risk management.)

For example, having meetings with the patient outside the office is a behavior that is considered “risky.” Outside of office meetings can be part of a breakdown of boundaries in a relationship that is exploitative or harmful for the patient. Complying with risk management advice, however, does not always lead to more ethical behavior. Not all out of office contacts are unethical. I testified in a boundary-violation lawsuit that involved substantiated claims of out of office contacts and was successfully defended. The plaintiff testified that the therapist came to her house, at her request, and fed her dog while the plaintiff was hospitalized. The plaintiff also produced a series of small gifts that had been given to her by her therapist over the years. The plaintiff’s attorney attempted to characterize these and other behaviors as signs of an overly close, exploitative and sexual relationship. The jury was ultimately convinced, though, that the therapist’s actions—feeding the dog, for example—were simply acts of kindness towards the patient and were neither unethical nor exploitative and were not indicators that the relationship had become sexual. Indeed, from the defense point of view, the therapist’s kind and caring behavior had been a key ingredient in building the therapeutic alliance and keeping this very ill patient in treatment. The jury ultimately decided that the patient’s case was a fraudulent attempt at financial gain.

While decreasing the likelihood of a lawsuit, a commitment to risk management also decreases therapeutic flexibility, humanness and spontaneity. (For a discussion of this and similar quandaries, see Ofer Zur’s 2007 book, “Boundaries in Psychotherapy: Ethical and Clinical Explorations,” American Psychological Association Press, also see the book “Assessing and Managing Risk in Psychological Practice: An Individualized Approach,” by Bruce Bennett and associates, The Trust, 2006. The latter book was provided to all malpractice policy-holders by the American Psychological Association Insurance Trust.)

Post Traumatic Stress Disorder, or PTSD, is a psychiatric diagnosis that is overused in civil litigation. Plaintiffs inappropriately claim to suffer from PTSD despite the fact they they did not experience a life-threatening, horrific circumstance. The role of subjectivity in psychiatric diagnosis is explored and the objective criteria for PTSD are explained.

One of the most difficult lessons for most psychotherapists-in-training is to learn to focus on the patient’s subjective experience—not only on objective reality. Perhaps the key skill of the psychotherapist is the ability to understand and empathize with the patient’s perspective, no matter how unreasonable that perspective may be. For example, a patient who suffers from paranoid delusions and who believes that an ill-defined group of conspirators is spying on the patient and following the patient, should receive empathy from the therapist during treatment. Even though the therapist may attempt to explain that the patient’s perceptions are unrealistic and unlikely—and this very reasonable approach to treatment is notoriously ineffective—the therapist will also empathize with the patient’s reality. “How terrible that must feel,” is what most good therapists might say regarding the patient’s subjective experience of being followed by individuals with malevolent intent, thereby empathizing with the patient’s own experience.

Skillful therapists develop the ability to empathize with the patient’s reality and set aside, or place on the back burner, questions about whether that reality corresponds to the reality we all share, the reality that is objective. When a patient comes into treatment and describes being mistreated and abused by her attorney and the courts in a child custody matter, the first order of business—in order to build an effective therapeutic relationship—is to empathize with the how the patient is feeling. Maybe later, as treatment progresses, it would be appropriate to help the patient understand the bigger picture and to see that, while she might feel abused by the legal process, no one is intentionally abusing her or depriving her of her rights. Exploring the objective reality may be an important part of treatment, but endorsing the subjective experience is at least equally important to build the relationship and make the patient “feel heard.”

Some diagnoses are based entirely on the subjective and upon the patient’s self-report of his or her experience. When the patient describes depression, it becomes moot whether the objective reality the patient describes really “is depressing.” Indeed, some depressed patients lead charmed lives. Amid wealth, health and supportive families, they feel empty and hopeless. They will be diagnosed as depressed based entirely on their experience of the world. The objective fact that there is nothing about which to be depressed is irrelevant to this diagnosis. Similarly, most anxiety disorders are diagnosed based entirely on the patient’s experience. Panic disorder and phobia, for example, are diagnosed based on the patient’s experience of situations. The fact that those situations are not, and should not, be a source of anxiety for most people is moot.

Attorneys and psychotherapists sometimes fail to realize that such subjectivity has no place in the diagnosis of Post Traumatic Stress Disorder or PTSD. PTSD is a diagnosis that is reserved for those who have actually experienced horrific things. PTSD, then, is set apart from phobias, for example, where an individual overreacts to a situation but the situation itself may not be inherently dangerous. For example, individuals who suffer from dog phobias may experience significant fear in the presence of the most harmless of tiny puppies. The objective threat posed by the puppy is irrelevant to both the phobic individual and to whoever is making the diagnosis of phobia.

PTSD, like all psychiatric diagnoses, is determined by a series of diagnostic criteria. Criterion A for PTSD includes the following statement: “the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others.” Note the use of the word “actual” in this statement; PTSD is diagnosed based on the actual reality, not on how this reality may seem to the individual. PTSD stands apart from most other psychiatric diagnosis by virtue of its linkage to actual, consensual reality.

In legal matters, plaintiffs often include a claim of PTSD in their lawsuits, claiming that some circumstance was so stressful to them as to result in psychological disability. In many cases on which I have consulted or testified, the PTSD claim is inappropriately predicated on an entirely subjective reading of a situation. For example, in an employment case involving claimed sexual harassment and retaliation, a plaintiff might testify that her boss looked at her in a way that made her feel frightened, that the boss seemed so angry that she feared for her life, and that he had a way of making people feel intimidated. Further testimony might establish that the boss in this case did nothing more than glare and had no history or violence, had never acted violent, and had never threatened violence. At the same time, the patient might claim to experience many of the symptoms of PTSD: recurrent images of the glaring boss, flashbacks to the time when the boss confronted her, anxiety symptoms like racing heart, nightmares, and avoidance of looking at the boss, thinking about the boss or going to locations where the boss might be present. All the symptoms of PTSD are present, but does the patient suffer from PTSD?

The answer is emphatically in the negative. Patients like this may well suffer from psychological sequelae of an adverse employment situation, but their diagnosis should not be PTSD unless something of a life threatening magnitude actually occurred at the workplace.

PTSD is often misdiagnosed in the context of civil litigation by plaintiff’s psychological witnesses. Sometimes, this misdiagnosis is the result of a lack of understanding of the criteria for PTSD. Sometimes, the diagnosis is made, not by the independent expert evaluator, but by the treating therapist, who is sympathetic with the patient’s suffering and bends over backwards to provide a diagnosis that captures the degree of pain the patient feels. Independent experts conducting evaluations for litigation, and who have no treatment relationship, also sometimes misdiagnose PTSD. This is not only the result of a poor understanding of the diagnostic criteria. Sometimes these expert witnesses actually argue in court that the diagnostic criteria themselves are at fault, and that PTSD should apply to instances in which the victim feels traumatized despite the fact that the alleged trauma was not objectively life threatening, or even objectively dangerous.

In sum, PTSD has been overused in civil litigation by plaintiffs attempting to emphasize their perceived injuries and to link these injuries to the actions of others. One must remember that the actions or events that lead to PTSD must be objectively horrific. If they are not, a different diagnosis must be given.

Years ago, the claim of “whiplash” was identified as an often bogus addition to a personal injury claim resulting from an auto accident. Whiplash was a neck injury, presumably caused by head movement at the moment of impact. In the days before headrests became mandatory safety features, these claims were numerous.

Anyone who was rear-ended could claim whiplash, as there were no objective findings that would rule in or rule out the claim. Plaintiffs may have submitted many false claims for whiplash. Some may have been outright frauds, while others may have generated imaginary pain as a result of the frightening accident.

The question arises in today’s litigation climate as to whether PTSD or Post Traumatic Stress Disorder is the new whiplash. It’s symptoms can be life altering, or even life threatening in those who actually suffer from PTSD. It is an anxiety disorder that also mimics depression. Many of our soldiers back from Iraq or Afghanistan suffer from this condition, and it is most likely perfectly legitimate in those cases.

At the same time, PTSD has emerged as a potentially malingered or manufactured emotional damages claim in a wide range of litigation. It comes up frequently in motor vehicle accidents, yet it is also found in sexual harassment and other employment cases, not to mention in psychotherapy and medical malpractice.

PTSD, when it is put forth as the basis for an emotional damages claim, must be carefully evaluated to determine whether it is authentic. Unfortunately, the symptoms of PTSD are often difficult for the layperson or attorney to distinguish from simple stress or just ordinary bad memories.